Panel Would End Death Row Inmates’ Multiple Appeals

Seeking to speed up the handling of death penalty cases, a panel led by former Supreme Court Justice Lewis F. Powell Jr. proposed Thursday that Death Row inmates who have exhausted state appeals be given only one chance within six months to file challenges in the federal courts.

Death penalty foes quickly denounced Powell’s proposal as “a rush to the gallows.”

Under the current system, which dates to 1867, a prisoner may file new and repeated appeals in the federal courts for years after a conviction and sentence have been finally approved in the state courts.

In the typical death penalty case, this two-track system results in years of drawn-out litigation, followed by a slew of frenzied “11th-hour appeals” as the execution date draws near.

The long delay--more than eight years on average from conviction to an execution--plus the high cost of litigation have raised doubts about capital punishment, even among its supporters.

“The hard fact is that the (death penalty) laws of 37 states are not being enforced by the courts,” the 82-year-old Powell said Thursday. “My feeling is that if we can’t make it work, we ought to abolish capital punishment.”

“The goal of this report is to kill more people faster,” charged Mary Broderick, director of the National Legal Aid Assn., which defends inmates facing execution.

Nationwide, about 2,200 prisoners are facing a death sentence. Yet, since 1976, when the Supreme Court reinstated capital punishment, only 118 people have been executed.

Death Sentence Rare

Annually, more than 20,000 murders are committed in the United States, only a small percentage of which result in a death sentence.

Although controversial, Powell’s proposal is expected to find a ready audience in Congress, which must make any changes in the 1867 law.

Last year, in the midst of debate on the massive anti-drug bill, Senate conservatives were prepared to put new time limits on federal court appeals in death cases. They were put off only by a pledge from Judiciary Committee liberals to send Powell’s recommendations to the floor for a vote 60 days after they are officially transmitted to Congress.

On Wednesday, Powell’s report was discussed behind closed doors by the Judicial Conference of the United States, which represents senior judges from each region of the nation, and which must decide whether to transmit the report to Congress. The judicial group, which is chaired by Chief Justice William H. Rehnquist, delayed a vote on whether to approve the report until its next meeting in March.

“This controversy . . . boils down to a simple question: Should there be a time clock on justice in this country?” said Leslie Harris of the American Civil Liberties Union, one of several groups which said they would fight the Powell plan in Congress.

Harris noted that some Death Row inmates are found to be not guilty after spending years in prison. In a recent, celebrated example, Randall Adams was freed from a Texas prison earlier this year, more than a decade after being mistakenly convicted and sentenced to death for killing a police officer.

Broderick also said that it was unfair and incorrect to say that appeals in death cases are merely intended to cause delay. In more than 40% of these cases, she said, the appeals result in the death sentence being overturned, usually because of a flaw in the trial or sentencing procedure.

The two critics accused Rehnquist of having “set up” a pro-death penalty panel, chaired by the highly esteemed Powell, with the express goal of cutting off prisoners’ appeals.

Rehnquist has not hidden his dissatisfaction with the death penalty system. In a speech to the American Bar Assn. in February, the chief justice said the case of serial killer Theodore Bundy showed how convicted murderers can make a travesty of the courts. Although Bundy had been on Death Row for nine years, his lawyers filed appeals in four different courts, including three in the Supreme Court, the day before his execution.

“Surely it would be a bold person to say that this system could not be improved,” Rehnquist told the lawyers group.

Last year, Rehnquist asked Powell and four other senior federal judges to study the workings of the 1867 Habeas Corpus Act in death cases.

In one sense, the Powell proposal is more generous to defendants than the initial changes proposed by the Senate conservatives.

If states choose to participate in the new streamlined system, they would be required to furnish Death Row inmates with a competent lawyer to review the case and file challenges in federal courts. Some states, including California and Florida, routinely provide lawyers, without charge, to file post-conviction appeals for convicted murderers, but others such as Georgia, Louisiana and Mississippi do not, according to Albert Pearson, a University of Georgia law professor who worked with Powell on the report.

“Capital cases should be subject to one fair and complete . . . review through the state and federal systems,” Powell said. “This review should be free from the time pressure of an impending execution and with the assistance of competent counsel for the prisoner. When this review has concluded, the litigation should end,” he said.